Opinion
No. CV00-0003327
June 28, 2004
MEMORANDUM OF DECISION
The petitioner, Ronald Ricks, alleges in his petition for a Writ of Habeas Corpus initially filed on March 19, 2001 and amended for the final time on June 8, 2004, that he was denied the effective assistance of counsel at the trial level in violation of the Sixth and Fourteenth Amendments to the United States Constitution and consequently that he should be allowed to withdraw his plea of guilty. The petitioner also alleges that there is newly discovered evidence to prove that he is actually innocent of the offense to which he pled guilty. For the reasons set forth more fully below, this Court finds that the petitioner has failed in meeting his burden of proof and the petition shall be denied.
The claim of ineffective assistance of counsel essentially complains that his trial defense counsel failed to properly conduct a pretrial investigation, failed to suppress a statement and the results of a search, and failed to properly advise the petitioner about the meaning and effect of his plea of guilty. The petitioner argues that as a result, the trial defense counsel did not perform his duties to his client in a professional manner such that this guilty plea was not knowing, intelligent and voluntary. In light of this, the petitioner asks that he be allowed to withdraw his guilty plea.
This matter came on for trial before this Court on June 8, 2004 and again on June 10, 2004. The petitioner, both of his trial defense counsel, Attorneys John Demerjian and Jason Gladstone, Detectives Richard Herlihy, John Donovan, and Ada Curet, as well as the petitioner's sister, Latisha Broadus and mother Mildred Ricks-Green all testified at the trial. In addition, the Court received a transcript of the petitioner's plea and sentencing, the petitioner's sworn statement to the Bridgeport Police, and other documents pertaining to the investigation by the Bridgeport Police Department into evidence. The Court has reviewed all of the testimony and evidence and makes the following findings of fact.
Findings of Fact
1. The petitioner was the defendant in a criminal case in the Judicial District of Fairfield, under Docket Number CR97-135273 in which he was charged with, inter alia, Felony Murder in violation of CGS § 53a-54c. He was initially assigned Attorney John Demerjian to represent him.
2. On April 9, 1999, pursuant to a plea agreement the petitioner entered a plea of guilty to a single count of Felony Murder in Docket Number CR97-135273. The Court, Comerford, J., thoroughly canvassed the petitioner and found his pleas to be knowingly and voluntarily made with the assistance of competent counsel. The Court thereafter accepted the pleas and entered a finding of guilty as to the count of felony murder.
In exchange for his plea of guilty to felony murder and the promise to testify as state witness in the trial of his co-defendant, Timothy Griffin, the petitioner would receive an agreed-upon sentence of twenty-five (25) years to serve and the state would enter a nolle prosequi as to all other pending charges.
3. The Court, Comerford, J. then ordered the preparation of a Pre-Sentence Investigation and continued the matter until May 21, 1999 for the imposition of sentence.
4. Before that could take place, the petitioner had second thoughts about the agreement he had made with the state and asked to withdraw his guilty plea. He indicated that he did not understand that he was supposed to testify against his codefendant Thomas Griffin, and that his attorney had not properly advised him of the minimum and maximum punishments. The Court relieved Attorney Demerjian and replaced him with a new counsel, Attorney Jason Gladstone.
Although the petitioner testified at the habeas trial that he did not realize that he was going to have to testify against Mr. Griffin as a part of his pretrial agreement, it is clear from the April 9, 1999 transcript that Judge Comerford went over this aspect of the agreement at least three separate times and ascertained directly from the petitioner he understood his obligation to testify truthfully. The petitioner's contradictory testimony at the habeas trial is not credible and is indicative of mendacity on the part of the petitioner.
5. The petitioner came back before the Court for a hearing on his motion to withdraw his guilty plea on May 25, 1999. At that time, the Court reserved ruling on the motion and continued the case until June 18, 1999.
For reasons unbeknownst to this Court, neither party has introduced the transcript of the May 25, 1999 hearing into evidence in the habeas trial. Consequently, this Court cannot make any findings of fact in regard to what did or did not take place at the hearing.
6. On June 18, 1999, before the Court had the opportunity to rule on the motion to withdraw the original guilty plea, the petitioner had a change of heart and decided to withdraw the motion to withdraw his guilty plea.
The following took place at this June 18, 1999 session (Petitioner's Exhibit 2, Page 1):
The Court: I'll allow him to exercise whatever constitutional prerogatives he wants to exercise, but I will not allow him to make a mockery of the system, Mr. Gladstone. Do you understand that, Mr. Ricks?
Mr. Ricks: Yes.
7. The Court then conducted a full canvass of the petitioner to verify that this decision to withdraw the motion was knowing, intelligent and voluntary. After determining that it was, the Court, Comerford, J., nevertheless vacated the previous plea and canvass and thereafter put the petitioner to plea once again and re-canvassed him.
The State offered a new plea bargain that would have the petitioner plead guilty to felony murder and receive a thirty-year sentence to incarceration. The State withdrew its requirement that the petitioner testify against Mr. Griffin.
8. The Court conducted a second thorough and exhaustive canvass of the petitioner, his counsel, and his mother who, due to the petitioner's age, had previously been appointed the Guardian ad litem for her son. The Court found that the petitioner's second guilty plea was, like the first one, knowing, intelligent and voluntary and again entered a finding of guilty as to the charge of felony murder.
9. Later on in the afternoon of June 18, 1999, the Court, Comerford, J., sentenced the petitioner to thirty years incarceration, of which 25 years was mandatory.
This sentence is in accord with the second pretrial agreement in this case. The State backed off from its initial insistence that the petitioner testify against Mr. Griffin, however, as a result the state wanted an additional five years of incarceration. The petitioner agreed and was sentenced in accord with this agreement.
10. The Court will discuss additional facts, as necessary.
Discussion
The petitioner now comes before this Court seeking to withdraw his voluntary plea of guilty to the charge of felony murder in violation of CGS § 53a-54c. Moreover, he asserts a claim of actual innocence to the charge.
This Court notes that the claim of actual innocence is frequently raised in a petition for a writ of habeas corpus. Nevertheless, in many cases such as in the case at bar, the petitioner and his counsel did not make anything other than a cursory attempt to prove the actual innocence claim. While petitioners may feel free to make such claims, even in the absence of some evidence to support the claim, it is incumbent upon an attorney-at-law to "not bring or defend a proceeding or assert or controvert an issue therein, unless there is a basis for doing so that is not frivolous." Rule 3.1, Rules of Professional Conduct. A claim of actual innocence, if raised, must be tried or withdrawn. If there is no evidence available to support such claim, counsel should utilize the procedures set forth in Anders v. California, 386 U.S. 738 (1967).
There is a critical difference between the legal status of a person who has been accused of a crime as opposed to one who has been convicted of a crime. While the person who has been accused of a crime is entitled to a presumption of his or her innocence, the petitioner in a habeas corpus petition is not. "It is undoubtedly true that `[a] person when first charged with a crime is entitled to a presumption of innocence, and may insist that his guilt be established beyond a reasonable doubt. In re Winship, 397 U.S. 385, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970).' Herrera v. Collins, 506 U.S. 390, 113 S.Ct 853, 859, 122 L.Ed.2d 203 (1993) . . . The presumption of innocence, however, does not outlast the judgment of conviction at trial." Summerville v. Warden, 229 Conn. 397 at 422-23 (1994). Consequently, even though "a substantial claim of actual innocence is cognizable by way of a petition for a writ of habeas corpus, even in the absence of proof by the petitioner of an antecedent constitutional violation that affected the result of his criminal trial," Summerville v. Warden, 229 Conn. 397 at 422 (1994), the burden of proving this rests with the petitioner. "Thus, in the eyes of the law, [the] petitioner does not come before the Court as one who is `innocent,' but on the contrary as one who has been convicted by due process of law." Summerville v. Warden, infra at 422.
In this case, not only has the petitioner been convicted of the offense, he has been convicted pursuant to his pleas of guilty. "A valid guilty plea generally operates as a waiver of all defects in the prosecution `except those involving the canvass of the plea and the court's subject matter jurisdiction.' State v. Reddick, 224 Conn. 445, 451, 619 A.2d 453 (1993); see also State v. Niblack, 220 Conn. 270, 276-77, 596 A.2d 407 (1991); State v. Gilnite, 202 Conn. 369, 374 n. 4, CT Page 9543 521 A.2d 547 (1987); State v. Satti, 2 Conn. App. 219, 221-22, 477 A.2d 144 (1984)." D'Onofrio v. Commissioner, 36 Conn. App. 691 at 693 (1995). Moreover, "the guilty plea is a waiver of constitutional rights — a waiver of non-jurisdictional defenses — and where . . . the record discloses that such an act was voluntary, knowing, intelligent and done with sufficient awareness of the relevant circumstances and likely consequences, . . . the plaintiff's plea of guilty was valid." Consiglio v. Warden, 160 Conn. 151 (1970). In the instant case, it is clear that the petitioner's plea of guilty is voluntary, knowing, intelligent and done with sufficient awareness of the relevant circumstances and likely consequences. The Court engaged in a full canvass of the petitioner to determine the providence of his guilty plea, the petitioner was represented by counsel and fully understood the import of what he was doing. Consequently, his guilty plea is valid. A valid plea of guilty will operate to estop the petitioner from seeking to withdraw that plea at a subsequent habeas corpus proceeding.
In actuality, two pleas of guilty, on two separate occasions.
Here, the petitioner entered his pleas under the Alford doctrine. "[G]uilt, or the degree of guilt is at times uncertain and elusive, an accused, though believing in or entertaining doubts respecting his innocence, might reasonably conclude a jury would be convinced of his guilt and that he would fare better in the sentence by pleading guilty. McCoy v. United States, 124 U.S.App.D.C. 177, 179, 363 F.2d 306, 308 (1966)." See North Carolina v. Alford, 400 U.S. 25 at 33 (1970). The petitioner was charged with several serious charges. Had he gone to trial on this matter and been convicted, he would have faced incarceration for sixty years. It is quite likely that this would have been the remainder of his natural life. His total "exposure" was, therefore, high.
According to the National Vital Statistics Report, Vol. 51, No. 3 of December 19, 2002, a 15-year-old male could expect to live an additional 59.9 years.
At the time he entered his guilty plea in May 1999, it was prudent for the petitioner to agree to the settlement and enter a plea of guilty. "Reasons other than the fact that he is guilty may induce a defendant to so plead . . . [and he] must be permitted to judge for himself in this respect. State v. Kaufman, 51 Iowa 578, 580, 2 N.W. 275, 276 (1879)." See North Carolina v. Alford, 400 U.S. 25 at 33 (1970). By making the pragmatic decision to plead guilty, even if he believed himself innocent, the petitioner voluntarily chose to forego his constitutional right to a trial in exchange for a limitation upon sentence that allowed him to receive a more favorable sentence. With the agreement, the petitioner will be released from prison at about age 46, rather than facing a significantly likely possibility that he would die in prison.
The ultimate decision as to whether a criminal defendant pleads guilty or pleads not guilty rests with the individual charged with the crime. A criminal defendant has an absolute Constitutional right to persist in a plea of not guilty, even in the face of seemingly insurmountable obstacles and overwhelming evidence. He or she has an absolute right to hold the government to its justifiably high burden of proof and take the matter to a jury of his or her peers. The Constitution of the United States, the Bill of Rights, and the Constitution of the State of Connecticut collectively guarantee the fundamental right of a person to plead not guilty and have his or her case decided before a jury of his or her peers. Our common law has interpreted these Constitutional guarantees as requiring that the government seeking to deprive a person of freedom must first prove that person's guilt beyond all reasonable doubt. It is not and never has been, for the trial defense counsel to decide the plea that his client should enter. However, "[b]ecause a defendant often relies heavily on counsel's independent evaluation of the charges and defenses, the `right to effective assistance of counsel includes an adequate investigation of the case to determine facts relevant to the merits or to the punishment in the event of conviction.' Copas v. Commissioner of Correction, 234 Conn. 139, 154 (1995)." See Baillargeon v. Commissioner of Correction, 67 Conn. App. 716 at 721 (2002). Consequently, an attorney who fails to conduct an adequate investigation such that he or she is prevented from offering his client proper counsel in connection with the decision to accept or reject a pretrial agreement may well be providing ineffective representation.
"The requirement that guilt of a criminal charge be established by proof beyond a reasonable doubt dates at least from our early years as a Nation. The `demand for a higher degree of persuasion in criminal cases was recurrently expressed from ancient times, [though] its crystallization into the formula "beyond a reasonable doubt" seems to have occurred as late as 1798. It is now accepted in common-law jurisdictions as the measure of persuasion by which the prosecution must convince the trier of all essential elements of guilt.'" In re Winship, 397 U.S. 358 at 361 (1970).
The focus of a habeas inquiry where there has been a guilty plea is the nature of the advice of counsel and the voluntariness of the plea, not the existence of a purported antecedent constitutional infirmity. Tollett v. Henderson, 411 U.S. 258, 93 S.Ct. 1602, 36 L.Ed.2d 235 (1973). If a prisoner pleads guilty on advice of counsel, he must demonstrate that the advice was not within the range of competence demanded of attorneys in criminal cases. McMann v. Richardson, 397 U.S. 759, 771, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970). Moreover, "a guilty plea represents a break in the chain of events which has preceded it in the criminal process. When a criminal defendant has solemnly admitted in open court that he is in fact guilty of the offense with which he is charged, he may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea. He may only attack the voluntary and intelligent character of the guilty plea by showing that the advice he received from counsel was not within the standards set forth in McMann." CT Page 9545
Buckley v. Warden, 177 Conn. 538 at 542-43 (1979).
Now, the petitioner comes to Court seeking to set aside his plea of guilty on the ground that his attorney did an inadequate job of pretrial preparation. The petitioner alleges that both of his counsel failed to investigate and failed to suppress his statement or the results of the search of his home. However, the evidence presented to this court clearly shows that both of the trial defense counsel did do a more than adequate job of preparing for trial. Attorney Demerjian reviewed all of the material provided by the prosecutors in this case, participated in the Hearing in Probable Cause, had the statements of witnesses, interviewed and met with his client and had copies of all police reports. In addition, there was a statement of the petitioner that was inculpatory. Attorney Gladstone had access and reviewed all of the same material during his representation of time petitioner. There has been nothing presented to this court that would permit a finding that the plea of guilty was induced by the sub-standard performance of either trial defense counsel.
The petitioner has tried to raise the suppression of his incriminating statement and the search of the house in which a weapon stolen from the victim at the time of the murder was found as the basis for his counsels' ineffectiveness. Notwithstanding these claims, it is clear to this Court that any attempt to suppress the statement and the results of the search would have failed.
In regard to the petitioner's statement the evidence is clear that the petitioner was fully advised of and afforded all of his constitutional rights. The petitioner alleges that his confession should have been suppressed because he was not allowed to speak with his mother. In support, the petitioner cites to State v. Perez, 218 Conn. 714 (1991), as standing for the proposition that when considering a confession by a child, the Court must consider the totality of the circumstances. "[C]ourts should take `special care' in scrutinizing a purported confession or waiver by a child. Haley v. Ohio, 332 U.S. 596, 599, 68 S.Ct 302, 92 L.Ed.2d 224 (1948) (plurality opinion of Douglas, J.). As the United States Supreme Court acknowledged in In re Gault, [ 387 U.S. 1, 45, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967)], `special problems may arise with respect to waiver of the privilege by or on behalf of children and . . . there may well be some differences in technique — but not in principle — depending upon the age of the child and the presence and competence of parents.' See also Gallegos v. Colorado, 370 U.S. 49, 53-55, 82 S.Ct. 1209, 8 L.Ed.2d 325 (1962) (mandating a `close scrutiny' of the confession of a fourteen-year-old murder suspect); In re B.M.H., 177 Ga. App. 478, 479, 339 S.E.2d 757 (1986) (describing the `heavy burden' of establishing juvenile waiver of rights)." In re Manuel R., 207 Conn. 725, 738, 543 A.2d 719 (1988). However, the key fact in all of these cases is that the defendant was in fact a child, unlike the petitioner in this case. The petitioner was properly prosecuted in the regular session of the Superior Court and was not under any circumstances entitled to treatment as a juvenile. Consequently while there is a statutory provision, CGS § 46b-137, that renders a confession of a juvenile obtained by the police without the presence of the parents inadmissible, this clearly does not apply to one who is of the petitioner's age. Any attempt to suppress the properly warned statement of an adult because of the absence of his mother was doomed to failure.
The Court does of course recognize that a young man who has attained the age of 16 may in some instances be considered a child. However, for purposes of the criminal justice system as administered in Connecticut, persons of age 16 or greater are adults.
The petitioner has suggested that he had a basis to seek suppression of the fruits of the search of his room. Based upon an anonymous tip that the petitioner and his co-defendant were bragging about having robbed and murdered the victim in this case, the Bridgeport police approached the petitioner outside of the home that he shared with his mother and siblings. The victim in this case, the operator of a small store, kept a handgun underneath the counter. This handgun was stolen during the robbery and murder and was believed to be in the possession of the petitioner. The evidence is clear that both the mother and the petitioner gave their consent to search the premises for the handgun. While the Fourth Amendment to the United States Constitution does protect citizens from unreasonable searches and seizures, it is clear that where an individual has given consent to the police to conduct a search that no constitutional violation has occurred. Here, there was consent not only by the homeowner, the petitioner's mother, but also by the petitioner himself. There was no evidence introduced at the habeas trial to show that these consents were in any way coerced or vitiated by the acts of the police. Consequently, any attempt to suppress the search would have been futile, although Attorney Demerjian did file such a motion.
In fact, the evidence shows that the petitioner's mother was quite angry with her son for bringing a gun into her house where there were younger siblings. The testimony at the habeas trial supports a finding that this understandable desire to have a dangerous weapon removed from her home before another of her children could be injured was the motivation behind her consent to search.
The motion was apparently never actually litigated and the guilty plea waives any right of the petitioner to continue to challenge this consent search. Moreover, the Court notes that the stolen handgun was in fact recovered from the petitioner's room, exactly where he told the police they would find it.
Any claim of ineffective assistance of counsel must satisfy both prongs of the test set forth by the United States Supreme Court in Strickland v. Washington, 466 U.S. 688, 104 S.Ct. 2052, 80 L.Ed.2d 674, reh. denied, 467 U.S. 1267, 104 S.Ct. 3562, 82 L.Ed.2d ___ (1984), before the Court can grant relief. Specifically, the petitioner must first show "that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the `counsel' guaranteed the defendant by the Sixth Amendment." Strickland, infra at 687. If, and only if, the petitioner manages to get over the first hurdle, then the petitioner must clear the second obstacle by proving "that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversary process that renders the result unreliable." Strickland, infra at 687. In short, the petitioner must show both deficiency and prejudice. A failure to prove both, even though counsel's trial performance may have been substandard, will result in denial of the petition.
Trial in this Court of a habeas petition is not an opportunity for a new counsel to attempt to relitigate a case in a different manner. A habeas court "may not indulge in hindsight to reconstruct the circumstances surrounding the challenged conduct, but must evaluate the acts or omissions from trial counsel's perspective at the time of trial" Beasley v. Commissioner of Corrections, 47 Conn. App. 253 at 264 (1979), cert. den., 243 Conn. 967 (1998). "A fair assessment of an attorney's performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances to counsel's challenged conduct and to evaluate the conduct from counsel's perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Henry v. Commissioner of Correction, 60 Conn. App. 313 at 317 (2000).
"Although Strickland applies generally to the evaluation of whether ineffective assistance of counsel during criminal proceedings has infringed on a petitioner's constitutional rights, the United States Supreme Court has articulated a modified prejudice standard for cases in which the conviction has resulted from a guilty plea. See Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985). Hill requires the petitioner to demonstrate that he would not have pleaded guilty, that he would have insisted on going to trial and that the evidence that had been undiscovered or the defenses he claims should have been introduced were likely to have been successful at trial." Copas v. Commissioner, 234 Conn. 139, at 151 (1995). Given this, the petitioner must first prove that the performance by his trial defense counsel was deficient in the manner in which he conducted his pretrial activities and negotiated a plea agreement for the petitioner. Then, the petitioner must prove that, but for his attorney's inadequacies, he would have pled not guilty, gone to trial and been acquitted.
This Court cannot find any deficiencies in the performance of either Attorney Demerjian or Gladstone. They clearly conducted an adequate investigation, were fully aware of the facts of the case, and managed to negotiate a favorable pretrial settlement of the case. Arguably, the only area in which there may be some room to question their performance might be with the status of the suppression motions. The counsel could have attempted to make the guilty plea conditional thereby preserving the right of the petitioner to appeal the trial Court's denial of the motions. Nevertheless, as previously discussed, it is most unlikely that there was any possibility of the petitioner's prevailing on these points. Consequently, this Court will find that it was not deficient performance on the part of the trial counsel not to pursue a conditional guilty plea, particularly when there was no evidence presented to the habeas court to suggest that the state would have even agreed to doing so.
It is not even necessary to consider whether a trial counsel's performance was deficient if the Habeas Court is satisfied that there was no prejudice to the defendant by the actions of the trial counsel in representing the petitioner. "A reviewing court can find against a petitioner on either ground, whichever is easier. Strickland v. Washington, supra, 697; see Nardini v. Manson, 207 Conn. 118, 124, 540 A.2d 69 (1988) (`[a] court deciding an ineffective assistance of counsel claim need not address the question of counsel's performance, if it is easier to dispose of the claim on the ground of insufficient prejudice')." Valeriano v. Bronson, 209 Conn. 75 at 86 (1988).
It is clear that the petitioner did not suffer any prejudice as a result of any of the challenged actions or omissions of his trial defense counsel. When a defendant pleads guilty he or she relieves the state of an enormous burden in having to go forward with proof of guilt. A guilty plea is often thought of as the first step on the long road to rehabilitation and a beginning of a return of the offender to being a productive member of society. In return, the state will generally recommend that a penitent defendant receive a lower sentence. A plea bargain is in the nature of a contract, albeit one that deals with matters of the utmost importance. Consequently, even assuming deficient performance by his trial defense counsel, the petitioner must still show "that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland, infra at 694. Here, the petitioner voluntarily entered into this plea bargain, was ably represented by counsel who did conduct an adequate pretrial investigation, and, he freely made the choice to give up his constitutional right to a trial in order to obtain favorable consideration upon sentencing. "To mount a successful collateral attack on his conviction, a prisoner must demonstrate a miscarriage of justice or other prejudice and not merely an error which might entitle him to relief on appeal. Hill v. United States, 368 U.S. 424, 428, 82 S.Ct. 468, CT Page 9549 7 L.Ed.2d 417, reh. denied, 369 U.S. 808, 82 S.Ct. 640, 7 L.Ed.2d 556 (1962); D'Amico v. Manson, 193 Conn. 144, 156-57, 476 A.2d 543 (1984); see also Bowers v. Warden, 19 Conn. App. 440, 441, 562 A.2d 588, cert. denied, 212 Conn. 817, 565 A.2d 534 (1989). In order to demonstrate such a fundamental unfairness or miscarriage of justice, the petitioner should be required to show that he is burdened by an unreliable conviction." (Internal quotation marks omitted.) Buckley v. Commissioner of Correction, 222 Conn. 460-61." Summerville v. Warden, 229 Conn. 397 at 419 (1994). This, he cannot do.
Additionally, this Court is convinced that had the petitioner elected to plead not guilty and take his case to trial, it is likely that he would have been found guilty. It is well settled in Connecticut that a claim of actual innocence may be raised in a petition for habeas corpus even where that claim does not allege a claim that the petitioner's state or federal constitutional rights have been violated. See Summerville v. Warden, 229 Conn. 397 (1994), and Clarke v. Commissioner, 43 Conn. App. 374 (1996). However, in order to prevail in such a claim, a petitioner must overcome two very large obstacles. "First, taking into account both the evidence produced in the original criminal trial and the evidence produced in the habeas hearing, the petitioner must persuade the habeas court by clear and convincing evidence, . . . that the petitioner is actually innocent of the crime of which he stands convicted. Second, the petitioner must establish that after considering all of that evidence and the inferences drawn therefrom . . . no reasonable fact finder would find the petitioner guilty." Miller v. Commissioner, 242 Conn. 745, 791-92 (1997). Unlike the original criminal trial in which the petitioner (then the defendant) enjoyed the presumption of innocence with the burden of proving his guilt beyond all reasonable doubt resting upon the prosecutor, in the habeas proceeding the burden of proof rests upon the petitioner. This is so because of the "fact that in many cases an order for a new trial may in reality reward the accused with complete freedom from prosecution because of the debilitating effect of the passage of time on the state's evidence." Summerville v. Warden, supra. Furthermore, there is a strong societal interest "in not degrading the properly prominent place given to the original trial as the forum for deciding the question of guilt or innocence within the limits of human fallibility." Id.
The burden of proof in a habeas proceeding in which the claim is actual innocence requires that "the habeas court first must be convinced by clear and convincing evidence that the petitioner is actually innocent. The clear and convincing standard of proof is substantially greater than the usual civil standard of a preponderance of the evidence, but less than the highest legal standard of proof beyond a reasonable doubt." CT Page 9550 Miller v. Commissioner, supra at 794. Clear and convincing evidence must "induce in the mind of a trier a reasonable belief that the facts asserted are highly probably true, that the probability that they are true or exist is substantially greater than the probability that they are false or do not exist." State v. Bonello, 210 Conn. 51 at 66, cert. den., 490 U.S. 1082, 109 S.Ct. 2103, 104 L.Ed.2d 664 (1989).
There is a threshold question regarding the issue of whether the question of actual innocence should even be considered by this Court. "The respondent asserts that a claim of actual innocence, when raised in a habeas corpus proceeding, must be based on newly discovered evidence. To be considered `newly discovered,' `the evidence must be such that it is not cumulative, was not available to the petitioner at his criminal trial and could not have been discovered prior to the criminal trial through the exercise of due diligence.' In Clarke v. Commissioner of Correction, 249 Conn. 350, 357-58 (1999), our Supreme Court has left the absolute requirement of `newly discovered evidence' an open question in our habeas jurisprudence `until the actual outcome of the case is likely to depend on the answer to the legal question.' Id. at 351." LaPointe v. Warden, No. CV 97-0571161 (Sep. 6, 2000), Freed, J. Although having been presented with several opportunities to do so, our Supreme Court has declined to make the definitive statement. Consequently, while the final rule in this state may be to the contrary, as it stands at this time, the operative appellate decision on this issue is Clarke v. Commissioner, 43 Conn. App. 374 (1996).
Indeed, it is not altogether clear whether one who has been convicted pursuant to a plea of guilty can even raise an actual innocence claim. It stands to reason that before any consideration of the actual innocence claim, a petitioner must first convince the habeas court that his or her guilty plea was defective and should be withdrawn. If successful, that then places the petitioner back in the position of being one who is accused of a crime as opposed to one who has been convicted. At that point, the petitioner would be innocent of the charge, consequently, it is illogical, if not illegal, to then require the petitioner to prove his innocence. If the guilty plea is vacated, the state would then have the option of either releasing the petitioner and forgoing prosecution or seeking to try him for the crime charged. The petitioner's presumption of innocence would, therefore be revived and the burden of proving guilt would fall back on the state. This issue was not properly pled before the habeas court and would best be tested through the respondent's filing of a motion to dismiss a count alleging actual innocence where there is a guilty plea.
Most notably, in Clarke v. Commissioner, 249 Conn. 350 (1999), the Supreme Court specifically directed that this exact issue be briefed. Notwithstanding, upon decision, the Court declined to reach this issue because Petitioner Clarke did not present a case in which he had established actual innocence.
In Clarke, the Appellate Court "concluded that although no governing standard of proof exists under which a claim of actual innocence should be evaluated, such a claim must, nonetheless, be based on newly discovered evidence. Williams v. Commissioner of Correction, supra, 41 Conn. App. 527. [The Appellate Court] concluded that `a writ of habeas corpus cannot issue unless the petitioner first demonstrates that the evidence put forth in support of his claim of actual innocence is newly discovered.' (Emphasis added.) Id., 530. Moreover, `[it] incorporate[d] the due diligence component of the standard used in determining whether a new trial should be granted because of newly discovered evidence in the determination of whether a writ of habeas corpus should issue as a result of a petitioner's claim of actual innocence.' Id., 528. Thus, [it] held that `a petitioner must demonstrate, by a preponderance of the evidence, that the proffered evidence is such that it could not have been discovered earlier by the exercise of due diligence.'" Clarke, supra at 379.
Subsequent to the Appellate Court's decision in Clarke, the Supreme Court decided Miller v. Commissioner of Corrections, 242 Conn. 745 (1997), in which the standard of proof was discussed. This will be reached later in this decision.
Despite the allegation contained in the amended petition, the petitioner has not submitted anything evenly remotely resembling "newly discovered evidence." Consequently, on that basis alone, this court would be justified in rejecting the claim of actual innocence.
Here, the petitioner has been found guilty through his own plea. He enjoyed the representation of competent counsel and the Court has found that his plea of guilty is knowing, intelligent and voluntary. In a habeas claim involving the claim of actual innocence, the petitioner asks this Court to set aside that plea and order a new trial. The "clear and convincing" standard that this Court must apply "should operate as a weighty caution upon the minds of all judges and it forbids relief whenever the evidence is loose, equivocal or contradictory." Lopinto v. Haines, 185 Conn. 527 at 539 (1981). Here, there is no basis upon which to set aside the guilty plea, and even had there been a basis to do so, the available evidence pointing to the petitioner's guilt is strong. In light of all of this, the petitioner has failed to meet his burden of proving actual innocence with clear and convincing evidence. Moreover, not only must the petitioner prove with clear and convincing evidence that he is actually innocent (something that he failed to do) he must also prove that no reasonable finder of fact would find the petitioner guilty. Miller v. Commissioner, 242 Conn. 745 at 802 (1997).
There was, of course, no trial in the first proceeding in which the evidence was tested before a jury. The court is left with the prosecutor's statement of facts at the guilty plea contained in Petitioner's Exhibit 2 and will, therefore, assume their credibility.
The Petition for a Writ of Habeas Corpus is denied.
S.T. Fuger, Jr., Judge